<nettime> [US] database legislation and ownership of court opinions

[James Love <love@cptech.org>]

     [orig to: INFO-POLICY-NOTES <info-policy-notes@essential.org>;
      orig sub: Carl Hartmann letter to Sen Hatch Regarding Database 
      legislation and ownership of court opinions]



February 11, 1999
   
   Hon. Orinn G. Hatch 
   Chairman, 
   ommittee on the Judiciary 
   Washington, D.C. 20510-6275
   
           RE: Collections of Information Antipiracy Act
   
   Dear Senator Hatch:
   
           I am one of the 2 lead attorneys who litigated 
   the successful recent copyright case against West 
   Publishing in the Southern District of New York and 
   the Second Circuit.
   
           Yesterday (on February 10, 1999)West 
   represented  to Judge John S. Martin, SDNY, that West 
   will seek certiorari to the U.S. Supreme Court on both 
   issues therein.
   
           I thank you for your kind and thoughtful 
   letter of January 25, 1999 on this subject--and would 
   like to point out several additional facts with regard 
   to the attempts by the two major, foreign corporations 
   involved--to effectively monopolize access to U.S. 
   Law.  CNET reported:
   
           Rep. Howard Coble (R-North Carolina) and Sen. 
           Orrin Hatch (R-Utah)are once again 
           spearheading legislation to protect the "brow 
           sweat" and deep pockets of database creators 
           and publishers, such as WestLaw, Reed 
           Elsevier, which owns major periodicals, and 
           Lexis-Nexis.
   
           "Developing, compiling, distributing, and 
           maintaining commercially significant 
           collections requires substantial investments 
           of time, personnel, and money," Coble said on 
           the House floor last month when he 
           reintroduced the Collections of Information 
           Antipiracy Act. "The bottom line is clear: it 
           is time to consider new federal legislation to 
           protect developers who place their materials 
           in interstate commerce against piracy and 
           unfair competition."
   
           I ask that whatever is finally enacted have a 
   "carve-out" provision to except all federal and state 
   law before 1995--the year that it first became clear 
   that West and others were claiming a copyright in the 
   text part of judicial decisions actually authored by 
   judges.  See the two second Circuit decisions (both 
   titled MATTHEW BENDER & COMPANY, INC. and HYPERLAW, 
   INC. v. WEST PUBLISHING CO., at 158 F.3d 693 (page 
   numbers) and 158 F.3d 674 (text of judges opinions)--
   both just decided on November 3, 1998.
   
           I want to make it clear that West and other 
   publishers are not seeking to "protect" just their 
   headnotes, key numbers and summaries-- but, rather, 
   the actual text of decisions written by judges of 
   federal and state courts.
   
           In the action before the SDNY, West took the 
   position that it had a copyright on the opinion part 
   of the reports in its Supreme Court Reporters, Federal 
   Reporters and Federal Supplements.  It also claimed a 
   copyright in the citations--the page numbering 
   references.  The Court found otherwise--as did the 
   Second Circuit.
   
           The effect of giving some sort of "super-
   protection" to two companies which are owned by 
   foreign giants will to be monopolize the law--for in 
   many cases, the only valid copies of those cases 
   "belong" to West or Lexis.
   
           I implore you to carve out this exception.  
   Moreover, I implore you to look into the secret 
   agreements between West and Lexis which originated in 
   the late 80's -- and which both have referred to in 
   court proceedings the 90's--but which remain secret. 
   These were agreements for the control of "Caselaw" and 
   "Statutes". They have resulted in a two entity 
   industry, where two giants control all of the major 
   on-line access to the law, and a good deal of the 
   book-based research.
   
           I would propose the following language:  
   
           "Excepted from these provisions are the 
           judicial opinion portion and citations to 
           any collection of federal, state, or 
           administrative caselaw; and the 
           governmentally authored portions of, and 
           citations to collections of state and 
           federal statutes, codes and regulations."
   
           Please do not give these corporations 
   ownership of U.S. law.  Please do not increase the 
   cost of access to the law by more than 400% by 
   creating a protected monopoly that was gained in a way 
   which you do not understand.  At the very least, cut 
   this portion out into a separate bill--and allow a 
   year for full and knowledgeable discussion by the 
   public, lawyers and judges.  The Congress should know 
   (1) how these companies originally obtained many of 
   these cases, (2) the decision of Judge Martin with 
   regard to alleged threats by West, and (3) the methods 
   used to influence decision-makers regarding access to 
   these materials.
   
   Sincerely,
   
   Carl J. Hartmann, III 
   Attorney for HyperLaw, Inc. 
   126 Sussex Street 
   Jersey City, NJ 07302 
   hartmann@carroll.com 
   Voice: (201) 434-1738 
   Fax:   (201) 434-3616 

-- 
James Love, Consumer Project on Technology
P.O. Box 19367, Washington, DC 20036
202.387.8030; f 202.234.5176
http://www.cptech.org, mailto:love@cptech.org
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